EDS comments on RMA reform announcement

The Chairman of the Environmental
Defence Society, Gary Taylor, has responded to the
announcement today of the National-led government’s
Resource Management Act (Simplify and Streamline) Amendment
Bill 2009.

EDS is an environmental public interest law
group well placed to critique the RMA reforms. It convened a
national conference on the RMA in 2007 and is regularly
before the Courts on resource management issues.

“If the
bill merely simplified and streamlined current processes,
and reduced unnecessary compliance costs, it would be
acceptable,” said Mr Taylor.

“All resource management
practitioners would accept that the RMA needs a tune-up. The
real question is whether the bill goes beyond that and
lowers environmental standards or reduces rights of
legitimate participation.”

“Mostly, the reform bill
appears to be in the tune-up category. But there several
proposals of major concern and a number of other seemingly
small changes that taken together will weaken environmental
planning and have a chilling effect on public
participation.

“The key change in the tune-up category
relates to major infrastructure developments. EDS has long
argued that major projects should more readily proceed to
the Environment Court or a Board of Inquiry and this bill
does that. Having a council hearing for matters that are
inevitably going to appeal is a waste of everybody’s time.
However, we would suggest that any party ought to be able to
request referral, not just applicants.

“The related
proposal to create an Environmental Protection Authority was
well-signalled before the election. An EPA could improve the
quality of our environmental administration, but we will
have to wait for phase 2 of the reforms to see how the shell
proposed in this bill will be fleshed out.

“Many of the
changes proposed to plan making procedures are generally
acceptable. More national guidance is proposed and that is
good. A number of further changes should reduce the time it
takes to make plans.

“Many of the proposals with respect
to resource consents are also acceptable. It is good to see
pressure put on councils to process resource consents within
clear timeframes. “But where the bill moves into very
questionable territory, is where it proposes to weaken plans
and limit rights of public participation.

“Our primary
concern is the proposal to limit appeals on district plan
reviews to points of law unless leave of the Environment
Court is obtained.

“In our view this mistakes the role
of the Environment Court which is an expert tribunal that
hears the issues afresh and applies its considerable
environmental expertise to reviewing the merits of a case.
It is a vitally important counter to the possible excesses
of councils that can make perverse decisions from time to
time. Reviewing the merits of plan changes protects the
public from decisions based on parish pump politics,
political dogma, or just bad judgement. The Environment
Court currently provides the only ‘check and balance’ on
council decision making under the RMA and it would be a very
retrograde step both for effective local administration and
for the environment to remove this.

“Another concern is
the proposal to further limit notification of resource
consents. Rights for the public to object have been slowly
whittled away over the years and now further limits are
proposed. This runs counter to the participatory nature of
the RMA and the ability of members of the public to be heard
on applications which are likely to have a negative effect
on the environment.

“Other proposals are also likely to
prove problematic. Making rules only take effect once a plan
change or variation becomes operative will lead to the
gold-rush effect, where people rush to beat proposed rule
changes before they take effect. This will make it almost
impossible for planners to keep ahead of environmental
issues as they develop.

“The proposal to remove
non-complying activity status from plans needs
clarification. One effect of this might be to weaken plans,
lower the environmental bar and produce bad environmental
outcomes. We agree there are too many categories of resource
consents but the thinking behind this proposal is not
clear.

“It is also unclear whether the proposal to
prevent submitters seeking to have whole plans withdrawn
applies to plan changes or variations. If it does,
submitters would not have been able to oppose Waitakere City
Council’s proposed plan change making Whenuapai a
commercial airport. This aspect of the bill needs further
explanation.

“We are also concerned to see security for
costs proposed as well as a very substantial increase in
court filing fees. This will further discourage public
participation.

“Overall there are a number of changes
that taken together will weaken proactive planning, further
limit public involvement in RMA processes and shift the
balance further towards development interests. This is
hardly surprising given the development bias in the
membership of the TAG.

“We note that there is a second
phase of RMA reform to follow. This is likely to deal with
more substantive issues. It is hoped that the government
will set up a more balanced and consultative process than
the one it used this time,” Mr Taylor concluded.

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